gelinas v. boisselle et al., memorandum and order on cross motions for summary judgement

8/2/2019 Gelinas v. Boisselle et al., Memorandum and Order on Cross Motions for Summary Judgement

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UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS

LUKE GELINAS, )

Plaintiff )))

v. ) Civil Action No. 10-30192-KPN))

EDWARD BOISSELLE, TODD )DINEEN, AND DAVID GAGNE, )

Defendants )

MEMORANDUM AND ORDER WITH REGARD TO CROSSMOTIONS FOR SUMMARY JUDGMENT (Document Nos. 27 and 34)October 17, 2011

NEIMAN, U.S.M.J.

Luke Gelinas (Plaintiff) filed this action pursuant to 42 U.S.C. 1983 and the

Massachusetts Civil Rights Act (MCRA), Mass. Gen. L. ch. 12 11I, alleging that

Edward Boisselle (Boisselle), as chairman of the South Hadley School Committee (the

Committee), violated his First Amendment rights by preventing him at a school

committee meeting from criticizing the school administration for its alleged failure to

properly monitor and control school bullying and, more specifically, its handling of

matters related to the suicide of Phoebe Prince (Phoebe), a high school student.

Plaintiff further alleges that Todd Dineen (Dineen) and David Gagne (Gagne)

(together with Boisselle, Defendants), two on-duty police officers who attended the

committee meeting, violated his Fourth Amendment rights by unconstitutionally seizing

him and escorting him out of the school committee meeting. Defendants, in response,

deny Plaintiffs claims and, in addition, argue that they are entitled to qualified immunity.

Case 3:10-cv-30192-KPN Document 44 Filed 10/17/11 Page 1 of 24


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Pursuant to28 U.S.C. 636(c) and Fed. R. Civ. P. 73, the parties have

consented to the jurisdiction of this court. Presently, Defendants seek summary

judgment on all of Plaintiffs claims. In turn, Plaintiff seeks summary judgment on his

section 1983 claim against Boisselle. For the reasons that follow, the court will allow

Defendants motion with respect to Plaintiffs MCRA and Fourth Amendment claims

against Dineen and Gagne, but deny the motion as it concerns Boisselle. The court will

also deny Plaintiffs motion for summary judgment.

I. BACKGROUND

The parties do not dispute the following facts which are construed in a light most

favorable to the non-moving party. On January 14, 2010, Phoebe, a student at South

Hadley South High School (South Hadley), committed suicide allegedly as a result of

bullying she suffered by her fellow classmates. (Defendants Statement of Facts (Defs.

SOF) 5.) Following Phoebes death, Plaintiff, on three separate occasions,

expressed to both Boisselle, an elected member of the Committee and its chairman,

and Dr. Gus Sayer, the Superintendent of Schools for South Hadley, his concern that

the school administration had improperly handled the events leading up to and

surrounding Phoebes death. (Id. 7.)

On April 14, 2010, at 6:30 p.m., the Committee held a public meeting in the

South Hadley High School library. (Id. 11.) Prior to the meeting, Boisselle met with

Dineen, one of the on-duty police officers, to discuss security issues, among other

matters. Boisselle thanked Dineen for attending the meeting to keep the peace and

directed him not to hesitate in removing any individual who caused a scene during the

meeting. (Id. 12.) The Committee meeting was videotaped by ABC News and South



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Hadley Community Television. (Id. 14; Plaintiffs Response to Defs. SOF (Pl. SOF)

14.) Copies of both videotapes have been submitted by the parties and reviewed by

the court. (SeeDefs.Ex. I; Pl. Ex. 8.) Plaintiff attended the meeting, along with

approximately seventy-five residents of the community and members of the media.

(Defs. SOF 15.)

Prior to recognizing any speaker, Boisselle announced several restrictions that

would be placed on speakers during the public comment portion of the meeting.

Specifically, Boisselle limited speakers comments to three minutes and, in an effort to

respect the privacy of the Prince family, prohibited any conversation about the Prince

family, Phoebe Prince, or any of . . . her activities or allegations related to that case.

(Id. 16; Defs. Ex. K at 16-17.) Boisselle also made some introductory remarks in

which he expressed his support for Sayer and Dan Smith, South Hadleys principal, and

praised the administrations efforts to combat bullying, stating that [the Committee]

probably [has] addressed this problem as much, if not more so, than any other

community and asserting that, because there are no facts that support any of [the]

allegations that [the Committee had] heard in the last few weeks [regarding their efforts

to protect students], then theres no action that should be taken. (Defs. Ex. K at 14.)

Following his remarks, Boisselle opened the floor to public comment. (Defs. SOF 17.)

Besides Plaintiff, fifteen individuals spoke during the public comment portion of

the Committee meeting. The record indicates that seven individuals criticized the

Committee, seven individuals praised the Committee, and two individuals comments

appear neither overtly critical or supportive of the Committee such that they could be

characterized as either. Among those individuals critical of the Committee, in addition



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to Plaintiff, were Bob Krok and Darby OBrien. Krok accused members of theCommittee of engaging in a cover up and having dropped the ball and urged the

community to get rid of em because they are just a noose on the neck of this town,

while using a hand gesture imitating a noose. (Defs. Ex. K at 18-19.) Following this

remark, Boisselle interrupted Krok and told him, You are done. (Id. at 19.) Krok was

escorted out by the police. (Pl. Ex. 9 at 4.) OBrien, another critic of the Committees

handling of events surrounding Princes death, asked that the individuals who could

have stepped in and stopped [the bullying] at any time along the way [be held]

responsible. (Id. at 11.) OBrien, who was interrupted once by Boisselle, was allowed

to use the entirety of his time. Following OBriens comments, Boisselle noted that

although during public comment [members of the Committee] usually dont respond,

he criticized OBrien for incorrectly portraying himself to the national media as the

Prince family spokesperson. (Defs. Ex. K at 40.) The remaining speakers critical of the

Committee were allowed to utilize the entirety of their time without serious interruption

or rebuttal by Boisselle, as were the individuals who spoke in support of the Committee.

Plaintiff was the second speaker of the night. Before speaking, Plaintiff began

distributing a prepared two and a half page type-written statement to each member of

the Committee. At this point, Kathy Mazur, a member of the Committee, stated that

Plaintiff was using up his three minutes of time. Plaintiff responded that he had not yet

begun speaking. Boisselle replied, Yeah. Please, move. There are other people here

waiting to talk. Plaintiff then began reading from his prepared statement, which

included the following exchange:

Plaintiff: I respectfully bring to you my concerns and wishes regarding the matter



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of the unfortunate and what now appears to have been the preventable death ofone of our young students and the subsequent criminal charges of at least sixother of our young citizens which I now firmly believe all of which could have andshould have been prevented by the administrators that were charged with theircare and custody. There has been much new information that has come to light

regarding this -- the matter at hand in the past several weeks. Specificinformation has been brought to your attention by the District Attorney and morerecently by me. And this information has been confirmed and corroborated by --

Boisselle: Hang on.

Plaintiff: -- the superintendent --

Boisselle: Excuse me. Excuse me.

Plaintiff: -- and the Committee chair --

Boisselle: No. This is my meeting, Mr. Gelinas. When I say excuse me, pleasebe quiet. You are stating that new information has been confirmed andcorroborated by the School Committee chair and the superintendent. You calledme last week --

Plaintiff: Excuse me. Mr. Chair --

Boisselle: -- and you -- No. No.

Plaintiff: -- is this taking away from my time?

Boisselle: No. No. No, not excuse me. This is --

Plaintiff: This is taking from my time.

Boisselle: -- the School Committees meeting, Mr. Gelinas. If you speak again,you wont have another opportunity. But I want to say that here has been -- Thisinformation that you referred to is just the type of information that the Princefamily has asked us not to disclose from day one. And I know that you said thatyou got it from the Prince family spokesman, but it is confidential information thatshould not be discussed in any way as far as this girls private life prior to her

death. And for you to say in public that I have corroborated that is simply nottrue. Ill allow you to go on, but when I see something that is simply factually nottrue, Im not going to allow this game to continue.

Plaintiff: And may I --



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Boisselle: Please, continue.

Plaintiff: May I respectfully ask the Chairman to save his comments for when Imdone and I can address them?

Boisselle: No, you cant. This is our meeting.

Plaintiff: Very good, sir.

Boisselle: But, please, go right ahead.

Plaintiff: Very good, sir. And that meeting -- This is all related to a meeting that Ihad with Superintendent Sayer.

Boisselle: What --

Plaintiff: And I spoke with you about it afterward. Getting back to what I wassaying -- And Ill go back to on the clock now. -- it is now public knowledge thatthere are many inconsistencies between what the principal has stated regardinghis findings and the investigation and the new information. In light of this newdiscovery, I feel that it is your duty to your constituents and to the good people ofthe Town of South Hadley to either dismiss Superintendent Gus Sayer and thehigh school principal, Dan Smith, or recommend that their contracts not berenewed, as well as provide censure and/or removal of the Committeechairperson, Mr. Edward Boisselle. Many citizens, officials, statements includingthe Governor of the State of Massachusetts have examined the information athand and concur that it is now time to hold --

Boisselle: Hang on. Hang on.

Plaintiff: -- responsible --

Boisselle: Stop.

Boisselle: I think its time for you to sit down, Mr. Gelinas.

Plaintiff: Excuse me, sir. I was interrupted.

Boisselle: No. No. No.

Plaintiff: If you want -- if you want to strike from the record, then, please, strikefrom the record.

Boisselle: And rightfully so.



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1 Although the transcript reflects only that this statement was made by Male

Voice, (Defs. Ex. K at 28), the record indicates that this statement was made by OfficerDineen. (Pl. Ex. 16 at 23.)

2 Although the transcript indicates that Boisselle expressly asked Plaintiff to leaveafterOfficer Dineen stated to Plaintiff that he had been asked to leave twice, the videorecordings submitted by the parties indicate that Officer Dineens statement followedBoisselles request that Plaintiff leave. (Defs. Ex. I (ABC News Video).)

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Plaintiff: Please strike from the record and allow me to continue, sir.

Boisselle: No. You are done. Who else would like to speak?

Plaintiff: That not no, sir.

Boisselle: You are --

Plaintiff: This is my first amendment right.

Boisselle: Mr. Gelinas, this is not your first amendment right.

Plaintiff: I did not go outside --

Boisselle: You are --

Plaintiff: --the purviews.

Boisselle: -- here as a guest of the School Committee. And its your firstamendment right --

Plaintiff: Im a citizen of --

Boisselle: -- to go outside on the street --

Plaintiff: -- South Hadley, sir.

Boisselle: -- and talk to whoever wants to talk to you.

Officer Dineen:1 Excuse me. He asked you to leave twice.

Boisselle: Please, leave.2

Plaintiff: Yes, sir.



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(Defs. Ex. K at 21-28.) At this point, Gagne and Dineen began to escort Plaintiff out,

touching him only for directional purposes and not injuring him in any way. (Defs. SOF

31.) As Plaintiff was leaving, an individual called out, Bully, and Plaintiff turned

around, asking the Committee why isnt this censured and why isnt this removed?

(Defs. Ex. K at 8.) At that point, Plaintiff left the meeting escorted by Gagne and

Dineen.

II. STANDARD OF REVIEW

When ruling on a motion for summary judgment, the court must construe the

facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331

F.3d 166, 173 (1st Cir. 2003). Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). An issue is genuine when the evidence is such

that a reasonable fact-finder could resolve the point in favor of the non-moving party,

and a fact is material when it might affect the outcome of the suit under the applicable

law. Morris v. Govt Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994). The non-moving party

bears the burden of placing at least one material fact into dispute after the moving party

shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d

13, 15 (1st Cir. 1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

The presence of cross-motions for summary judgment neither dilutes nor distorts this

standard of review. Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006).

III. DISCUSSION

A. Section 1983 Claim against Boisselle (Count I)



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Plaintiff and Defendants both move for summary judgment as to Boisselle.

Defendants assert that Plaintiff has failed to establish a First Amendment violation and

that Boisselle is entitled to qualified immunity. As might be expected, Plaintiff takes the

opposite position.

The qualified immunity inquiry comprises a two party test. A court must

determine whether (1) the plaintiffs allegations, if true, establish a constitutional

violation and, if so, (2) whether the constitutional right at issue was clearly established

at the time of the putative violation. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.

2009). Here, Plaintiff bears the burden of proof as to whether a constitutional violation

occurred and Boisselle bears the burden of proof as to whether he is entitled to qualified

immunity. See Liggins v. Clarke County Sch. Bd., Civil Action No. 5:09CV00077, 2010

WL 3664054, at *6 (W.D. Va. Sept. 17, 2010).

1. Whether Plaintiff has Established a Constitutional Violation

It is axiomatic that not every limitation on freedom of expression insults the First

Amendment. A curtailment of speech violates the Free Speech Clause only if the

restricted expression is, in fact, constitutionally protected and if the government's

justification for the restriction is inadequate." Berner v. Delahanty, 129 F.3d 20, 25 (1st

Cir. 1997) (internal citations omitted). It is also well-settled that the government need

not permit all forms of speech on property that it owns and controls." Int'l Soc'y for

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). The government, "no

less than a private owner of property, has power to preserve the property under its

control for the use to which it is lawfully dedicated." Greer v. Spock, 424 U.S. 828, 836



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3 Plaintiff also alleges in his complaint that the Committees restriction limitingcomments regarding Phoebe Prince constituted an impermissible content restriction, buthe appears to have set aside that claim for summary judgment purposes givenBoisselles admissions that [Plaintiff] did not disclose confidential or personalinformation about Phoebe Prince. (SeePlaintiffs Opposition to Defendants Motion forSummary Judgment at 14 n.7.)

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(1976). To be sure, the parties here dispute whether the school committee meeting was

a designated public forum or a limited public forum. See Del Gallo v. Parent, 545 F.

Supp. 2d 162, 178 (D. Mass. 2008), affd, 557 F.3d 58 (1st Cir. 2009) (noting that a

designated public forum is property that the government has intentionally opened for

expressive conduct by part or all of the public, as distinguished from a limited public

forum or nonpublic forum which is property not open by tradition or explicit designation

to the public for expressive activities."). However, since for present purposes, Plaintiff

asserts only that the Committees refusal to let him speak constituted viewpoint

discrimination, which is impermissible in any forum, the court need not address the

nature of the forum. See AIDS Action Comm. of Mass., Inc. v. Mass. Bay Transp.

Auth., 42 F.3d 1, 12 (1st Cir. 1994) (finding forum analysis unnecessary when restriction

violates prohibition on viewpoint discrimination). Accordingly, the court turns directly to

Plaintiffs claim that Boisselle engaged in impermissible viewpoint discrimination by

silencing him on account of his critical statements to the Committee and his call for its

members censure and removal.3

The essence of a viewpoint discrimination is a governmental intent to intervene

in a way that prefers one particular viewpoint in speech over other perspectives on the

same topic. Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 82 (1st Cir. 2004). A

claim of viewpoint discrimination in this circuit may also require invidious intent on the



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4 Although Defendants initially stated that Boisselle refused to allow Plaintiff tospeak because he had reasonable concerns about Family Education Rights and

Privacy Act (FERPA), as well as general privacy violations which may not have beencovered by FERPA if he allowed members of the public to speak about mattersidentified as prohibited by the Prince Family attorney, (Defendants Motion forSummary Judgment at 20), they appear to have abandoned this argument in their replymemorandum, in which they state that Boisselle did not ask [Plaintiff] to stop speakingbecause he violated FERPA. (Defendants Reply Memorandum at 11.) Rather,Defendants argue, Boisselle only silenced Plaintiff forreasonable viewpoint reasons.

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part of the relevant government officials. Del Gallo v. Parent, 557 F.3d 58, 76 (1st Cir.

2009) (citing McGuire v. Reilly, 386 F.3d 45, 63 (1st Cir. 2004)). Here, Defendants

argue that there is no evidence that Boisselle was openly hostile to Plaintiff because of

his views and, further, that Boisselle silenced Plaintiff for the following viewpoint neutral

reasons: (1) the limitation on any conversation about the Prince family, Phoebe Prince,

or any of her activities or allegations related to that case represented a reasonable and

viewpoint neutral limitation, (2) Boisselle reasonably silenced Plaintiff to preserve order

and decorum after Plaintiff was called out of order numerous times, although Plaintiff did

not speak uninterrupted for three minutes, and (3) Boisselle justifiably asked Plaintiff to

stop speaking because he spoke out of order and had the floor for approximately four

minutes.4

The court finds Defendants three-part rationale unpersuasive for purposes of

their summary judgment motion. First, any claim that Boisselle silenced Plaintiff

because he violated the rule barring discussion of personal issues concerning Phoebe

Prince and her family is belied by the present record. Although Boisselle, at some point

late in the meeting, did allude to Plaintiffs violation of this restriction as part of his

reason for silencing him, there is no indication that Plaintiff actually revealed any such



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information. To the contrary, the statement that prompted Boisselle to cut Plaintiff off

had nothing to do with personal details concerning the Prince family but, rather, the

removal and censure of Committee members, including Boisselle.

To be sure, Defendants argue that Boisselle reasonably anticipated that Plaintiff

would violate the content restriction because the second page of his prepared

statement, which Plaintiff began to read at the meeting and which he distributed to

members of the school committee, addressed personal matters related to the Prince

family. However, Defendants do not argue that Plaintiffs distribution of the previously

prepared statement (to Committee members only) violated the restriction, and there is

no indication in the record that, once aware of the content restriction, Plaintiff intended

to read any off-limit statements. Indeed, Boisselle himself acknowledged at his

deposition that at no time did Plaintiff actually disclose any personal information that

would have been covered by the restriction. (Pl. Ex. 2 at 68.)

Second, the court finds insufficient evidence to conclude at this stage of the

proceedings that Boisselle terminated Plaintiffs speech because he had exceeded his

three minute time limit, regardless of whether Plaintiffs distribution of a written

statement detracted from his speaking time or because he had the floor for

approximately four minutes. Boisselle himself implied at his deposition that he actually

believed Plaintiff was entitled to additional speaking time because of his interruptions;

Boisselle also testified that the decision to extend a speakers time would be at the

discretion of the chair and that he in fact did add extra time for [Plaintiff] to

compensate for the time that [he] was speaking, although that does not appear to be



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borne out by the record. (Pl. Ex. 2 at 69.) In fact, Boisselle was not even certain that

Plaintiff had exceeded the three minute time limit when he was asked to leave, stating

at his deposition only that he believe[d] [Plaintiff] was very close. (Pl. Ex. 2 at 70.)

Moreover, unlike other individuals who were given notice that they had nearly exhausted

their time, Plaintiff received no such warning. (SeeDefs. Ex. K at 39, 68, 75-76.)

Third, Defendants assertion that Boisselle silenced Plaintiff to preserve order

and decorum at the meeting is questionable. To be sure, there is some merit to

Defendants argument that Plaintiff continued to speak above Boisselle several times.

The first time Boisselle interrupted Plaintiff, the two continued to speak over each other,

but Boisselle chose not to silence Plaintiff; rather, Boisselle simply admonished Plaintiff,

If you speak again, you wont have another opportunity, and allowed him to go on.

However, during a second exchange in which Boisselle ordered Plaintiff to sit down, it is

arguable that Plaintiff was not out of order at all. Plaintiff, who began to say that it is

now time to hold , was interrupted mid-sentence by Boisselles interjection, Hang on.

Hang on, followed by Plaintiffs mere utterance of the word responsible. (Defs. Ex. I;

Pl. Ex. 8.) This single word, the court finds, is insufficient to conclude as a matter of law

that Boisselle silenced Plaintiff because he was out of order, especially given that

Boisselle did not provide such a reason at the meeting. See Liggins, 2010 WL

3664054, at *11 (finding there existed a genuine issue of material fact regarding a

chairpersons motive for silencing an individual where the chairpersons asserted basis

for silencing [the plaintiff was] entirely different from that which she provided at the

actual meeting). And, although Plaintiff did turn around and yell at the Committee after



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a member of the community shouted the word Bully!, the court is unable to conclude

that Plaintiff voiced his initial remarks in such a tone or manner as to threaten

disruption of the orderly conduct of the meeting. Id. at *8.

In many ways, the instant action is similar to the situation in Liggins, where the

school board held a meeting, in part, to consider whether to demote a school principal,

an African-American. Id. at *1. During the public comment portion, the plaintiff -- a

member of the community -- criticized the school board and accused its members of

violating the Civil Rights Act. The chairperson then interrupted the plaintiff, stating that

she would not tolerate the plaintiffs accusations that the board had committed an illegal

act and asked the plaintiff to sit down. When the plaintiff refused to sit down, the

chairperson called for the sheriff, but the plaintiff then sat down and avoided ejection

from the meeting. Following the meeting, the plaintiff commenced a lawsuit under

section 1983, claiming that the chairperson violated his First Amendment rights. Id. at

*2-3. In considering whether the Plaintiff had established a constitutional violation, the

court noted that the chairpersons claimed justifications for silencing the plaintiff were

not those offered during the meeting. As a result, the court found that a factual question

remained regarding the chairpersons motive in silencing the plaintiff and, accordingly,

refused to grant her motion for summary judgment. See id. at *10-11 ([W]here . . . [the

chairpersons] asserted basis for silencing [the plaintiff] is entirely different from that

which she provided at the actual meeting . . . a jury could find that [the defendant] had

no reasonable basis for fearing disruption, and . . . silenced [the plaintiff] solely because

she objected to the viewpoint he expressed.).



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Here, as in Liggins, the court finds a genuine issue of material fact regarding

Boisselles motive for silencing Plaintiff when he was calling for the removal of members

of the Committee. Id. at *11. Indeed, at least one of the justifications offered by

Boisselle during the meeting -- that Plaintiff had violated the rule governing the Prince

familys privacy -- has since been conceded by him to have been incorrect. A jury

should also be given the opportunity to consider Boisselles actions with in the context of

his treatment of several other individuals who spoke critically of the Committee. See

McGuire, 386 F.3d at 63-64 (Perhaps the standard for allowing . . . an inference of

intent from a pattern of impact would be more plaintiff-friendly in the First Amendment

context, given the special place that First Amendment rights have traditionally held in

our constitutional jurisprudence.). One of those individuals, Krok, was silenced by

Boisselle and also escorted out of the building. As for another critic, OBrien, Boisselle,

by his own description, took the unusual step of rebutting parts of his statement. In

contrast, none of the individuals who spoke in support of the Committee were

interrupted, rebutted, or escorted out of the meeting.

Granted, Defendants argue that, even if the rationales Boisselle provided are

insufficient to establish that he did not engage in viewpoint discrimination, the fact that

he allowed several of the Committees critics to speak for their allotted time without

interruption demonstrates as a matter of law that his treatment of Plaintiff was not

motivated by any desire to suppress a particular point of view. The court disagrees. As

the First Circuit has noted, [v]iewpoint discrimination concerns arise when the

government intentionally tilts the playing field for speech; reducing the effectiveness of a



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message, as opposed to repressing it entirely, thus may be an alternative form of

viewpoint discrimination. Ridley, 390 F.3d at 88 (emphasis added). Accordingly,

Defendants may pursue their defense before a jury so as to provide the larger context to

the meeting, as no doubt Plaintiff will invoke yet another critics statement concerning

Boisselles conduct. (SeeDefs. Ex. K at 70-71) (critics statement that she is probably

going to get escorted out for expressing her opinion that she really wish[ed] everyone,

everyone, had the chance and the opportunity to say how they felt here tonight. Some

people did. If you were pro-school, you had the floor. Thats how I feel.)

In sum, viewing the record in the light most favorable to Plaintiff, the non-moving

party with respect to Defendants motion, the court concludes that Plaintiff has

presented sufficient evidence from which a reasonable jury could find that Boisselle

prevented him from speaking solely on the basis of his viewpoint, thereby violating his

First Amendment rights. Accordingly, the court is prepared, subject to its discussion of

qualified immunity below, to deny Defendants motion for summary judgment.

Concomitantly, the court finds that Boisselle, who allowed four of the seven critics to

speak uninterrupted and unrebutted, has also raised genuine and material factual

issues regarding his motivation when silencing Plaintiff, to defeat Plaintiffs motion for

summary judgment.

2. Qualified Immunity

Having determined that there is sufficient evidence of a First Amendment

violation to withstand summary judgment, the court must determine, in relation to

Defendants claims of qualified immunity, whether Boisselles conduct violate[d] clearly



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established statutory or constitutional rights of which a reasonable person would have

known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As the Supreme Court has

explained, [f]or a constitutional right to be clearly established, its contours must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right. This is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful . . . but it

is to say that in the light of pre-existing law the unlawfulness must be apparent. Hope

v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted).

The First Circuit has thus divided the qualified immunity analysis into the

following two parts: (1) the clarity of the law at the time of the alleged civil rights

violation, and (2) whether, given the particular facts in a case, a reasonable defendant

would have understood that his or her conduct violated a claimaints constitutional

rights. See Glik v. Cunniffe, No. 10-1764, 2011 WL 3769092, at *3 (1st Cir. Aug. 26,

2011). An affirmative finding on these inquiries does "not require a case directly on

point, but existing precedent must have placed the . . . constitutional question beyond

debate." Id. At bottom, "the salient question is whether the state of the law at the time

of the alleged violation gave the defendant fair warning that his particular conduct was

unconstitutional." Id. (quoting Maldonado, 568 F.3d at 269).

Here, Defendants argue that a reasonable person in Boisselles position would

not have known that ejecting Plaintiff was a violation of clearly established First

Amendment rights. For support, Defendants point to Boisselles comments that he

considered Gelinas a guest of the Committee who was allowed to speak only in



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5 At the motion hearing, the court questioned, albeit indirectly, whether Boissellemight be immunized from suit under the Volunteer Protection Act, 42 U.S.C. 14501 etseq. Defendants indicated, however, that the Act expressly excludes limitations onliability where, as here, the alleged misconduct violated a Federal or State civil rightslaw. 42 U.S.C. 14503(f)(1)(D).

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accordance with established Committee rules and that, as chairman, he had the

authority to eject any person who exhibited improper conduct or made defamatory or

abusive remarks. But Defendants cite no law, and the court is not aware of any, which

indicates that the law prohibiting viewpoint discrimination was not clearly established at

the time of Committee meeting here. Indeed, despite Defendants reliance on the split

decision in Collinsonv. Gott, 895 F.3d 994 (4th Cir. 1990), a concurrence there

acknowledged that it was clearly established that an individual in a school committee

meeting could notsilence a speaker solely on the basis of his or her viewpoint. Id. at

1000 (Phillips, J., concurring) (holding as a matter of law that a reasonably competent

official is not permitted to rule a speaker out of an order and evict him if he had no

reasonable basis for fearing disruption, or if his actual purpose was to prevent

expression of [the speakers] viewpoint); see also Liggins, 2010 WL 3664054, at *11

(same). And unlike the undisputed facts in Collinson, where the chairman of the public

meeting was found to be entitled to qualified immunity, there is here a genuine dispute

as to whether Boisselles motive was to ensure the orderly conduct of the meeting or to

suppress Plaintiffs viewpoint on the subject matter under discussion. Accordingly, the

court will deny Defendants motion for summary judgment as to Boisselle.5

B. Section 1983 Claims Against Gagne and Dineen (Count II)

Plaintiff also alleges that Gagne and Dineen violated both his First and Fourth



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Amendment rights by removing him from the School Committee meeting. The court will

address each claim in turn.

To prevail under section 1983 claim for a violation of his First Amendment rights,

Plaintiff must show that Gagne and Dineen intended to inhibit speech protected by the

First Amendment . . . and that the[ir] conduct had a chilling effect on the protected

speech that was more than merely speculative, indirect or too remote." Dolan v.

Tavares, Civil Action No. 10-10249-NMG, 2011 U.S. Dist. LEXIS 73601, at *18 (D.

Mass. May 16, 2011) (internal citation omitted). It is widely recognized, however, that

questions of motive and intent will generally preclude a court from granting summary

judgment. See Dolan, 2011 U.S. Dist. LEXIS 73601, at *18. Nonetheless, the First

Circuit has recognized that summary judgment may be appropriate if the nonmoving

party rests merely upon conclusory allegations, improbable inferences [or] unsupported

speculation." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996).

Here, the complaint is devoid of any factual allegation that Gagne and Dineen

removed Plaintiff to inhibit his speech. Moreover, the record before the court indicates

that Gagne and Dineen removed Plaintiff simply because he did not leave when

Boisselle asked him to do so. (SeeDefs. Ex. H, Dineens Answers to Plaintiffs

Interrogatories at 4 (At the School Committee Meeting, [Boisselle] told [Plaintiff] to

leave. I understood this to mean that [Plaintiff] should be escorted out if he did not

comply with [Boisselles] request.); Defs. Ex. J, Gagnes Answers to Plaintiffs

Interrogatories at 3 (As [Plaintiff] was a guest of the School Committee meeting, I

concluded that [Boisselle] did not want [Plaintiff] to remain at the meeting. Therefore, I



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told [Plaintiff] that he had been told to leave the meeting by [Boisselle].)). Even more

to the point, Plaintiff does not dispute Defendants specific argument that Dineen and

Gagne removed Plaintiff to preserve order and decorum at the meeting. Thus, the court

finds Plaintiffs arguments that Dineen and Gagne violated his First Amendment rights

insufficient to defeat Defendants motion for summary judgment as to them.

Plaintiff, however, also alleges that Gagne and Dineen lacked probable cause to

remove him from the school committee meeting and that their doing so constituted an

unconstitutional seizure in violation of the Fourth Amendment. In response, Gagne and

Dineen assert that Plaintiffs Fourth Amendment rights were not violated because their

actions were objectively reasonable based on the totality of the circumstances. They

further argue that, even if Plaintiff has established a Fourth Amendment violation, they

are entitled to qualified immunity.

The court concludes that Gagne and Dineen are indeed entitled to qualified

immunity. Accordingly, it sees no need to address the Fourth Amendment question

further. In short, Plaintiff does not dispute the following facts: (1) Dineen touched [him]

for directional purposes as [Dineen] escorted [him] out of the meeting and Gagne

touched [him] briefly under one of his elbows with the cup of [his] hand in order to

direct him to the side of the room, and (2) the contact lasted for a matter of seconds

and [Plaintiff] was not injured in any way. (Plaintiffs Response to Defendants Concise

Statement of Facts 31-33.) Moreover, as described, Gagne and Dineen escorted

Plaintiff out of the meeting in accordance with an order they received from Boisselle

prior to the meeting to keep the peace and not to hesitate in removing any individual



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who caused a scene during the meeting. (Id. 12.) The record also indicates that

Gagne and Dineens conduct was courteous and in accord with a presumably valid

direction they received from the official presiding over the meeting. Because

[r]easonable officers in their positions would have no basis for believing that under the

circumstances their conduct would violate Plaintiffs constitutional rights, Collinson, 895

F.2d at 1004-1005, the court will grant their motion for summary judgment.

C. MCRA Claim Against All Defendants (Count III)

To establish an MCRA claim, Plaintiff must prove that his exercise or enjoyment

of rights secured by the constitution or laws of either the United States or

Massachusetts has been interfered with, or attempted to be interfered with, by threats,

intimidation or coercion. SeeMASS.GEN. L. ch. 12, 11H and 11I. Although the

MCRA is the state "counterpart" to section 1983 and is basically "coextensive with" the

federal statute, there are some differences. For example, to succeed on an MCRA

claim, a plaintiff, unlike with section 1983, must show that the derogation of rights

occurred "by threats, intimidation or coercion." Bally v. Northeastern Univ., 532 N.E.2d

49, 52 (Mass. 1989). A threat means the intentional exertion of pressure to make

another fearful or apprehensive of injury or harm. Goddard v. Kelley, 629 F. Supp. 2d

115, 128 (D. Mass. 2009) (quoting Planned Parenthood League of Massachusetts, Inc.

v. Blake, 631 N.E.2d 985 (1994)). "Intimidation" means putting a person in fear for the

purpose of compelling or deterring his or her conduct. Id. "Coercion" means application

of physical or moral force to another to constrain him to do against his will something he

would not otherwise do. Id.



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The MCRA contemplates a two-part sequence: liability may be found where (1)

the defendant threatens, intimidates, or coerces the plaintiff in order to (2) cause the

plaintiff to give up something that he has the constitutional right to do. See Goddard,

629 F. Supp. 2d at 128. Thus, as an initial matter, because Plaintiff has not established

that Gagne and Dineen violated his constitutional rights, his MCRA claim against them

must also fail. SeeMASS.GEN. L. ch. 12, 11H and 11I; see also Parks v. Town of

Leicester, Civil Action No. 10-30120-FDS, 2011 WL 864823, at *5 (D. Mass. March 9,

2011) (for purposes of the MCRA, the element of threats, intimidation, or coercion

must be separately present in additionto the violation of rights.) (emphasis added).

The court finds, however, that Plaintiffs MCRA claim against Boisselle should

survive. [I]n order for threats, intimidation or coercion to be found, the Supreme

Judicial Court normally requires a showing of an actual or potential physical

confrontation accompanied by a threat of harm. Fletcher v. Szostkiewicz, 190 F. Supp.

2d 217, 230 (D. Mass. 2002) (internal quotation marks omitted). As has been noted,

however, [a]lthough many cases decided by the Supreme Judicial Court have involved

actual or potential physical confrontations, it is settled that the MCRA also

encompasses the application of moral force so as to constrain a person to do against

his will something he would not have done. Lebeau v. Town of Spencer, 167 F. Supp.

2d 449 (D. Mass. 2001) (internal quotation marks omitted).

Here, it is undisputed that prior to the school committee meeting, Boisselle met

with Dineen and authorized him to keep the peace and not to hesitate in removing

any individual who caused a scene during the Meeting. (Defs. SOF 12-13; Pl. Ex.



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10 (Dineens Answers to Plaintiffs Interrogatories) at 4 ([I]t was discussed that if a

member of the public got out of line, they would be asked to leave and would be

escorted out of the room by the police officers present.).) It is also clear that Plaintiff

did not wish to stop speaking. Following Boisselles insistence first that he sit down and

later to leave, Plaintiff asked Boisselle to reconsider, stating that he could strike certain

statements from the record and accusing Boisselle of infringing on his First Amendment

rights. Construing the facts in a light most favorable to Plaintiff, the following scene thus

emerges from the record: Boisselle interrupts Plaintiff and orders him to sit down;

when Plaintiff protests, Dineen and Gagne, acting pursuant to Boisselles earlier

instructions, approach Plaintiff; as the officers near Plaintiff, Boisselle expressly orders

him to leave, and Plaintiff, now confronted by the officers, obeys. In this context, the

court is unpersuaded that Boisselles failure to give a direct order to Dineen and Gagne

to remove Plaintiff in any way dilutes the potential coercive effect of Boisselles

command that Plaintiff stop speaking. Indeed, whatever the precise contours of the

moral force standard under the MCRA, the court is satisfied that a reasonable jury

could conclude that Boisselles actions constrained Plaintiff to unwillingly surrender his

First Amendment right to criticize the Committee. That is enough to defeat Defendants

motion for summary judgment on Plaintiffs MCRA claim against Boisselle.

IV.CONCLUSION

For the reasons stated, Plaintiffs motion for summary judgment is DENIED. In

addition, Defendants motion for summary judgment is DENIED with regard to Plaintiffs

section 1983 and MCRA claims against Boisselle, but is otherwise ALLOWED. The



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Clerks Office shall schedule a final pre-trial conference and trial date.

IT IS SO ORDERED.

DATED: October 17, 2011

/s/ Kenneth P. NeimanKENNETH P. NEIMANU.S. Magistrate Judge


gelinas v. boisselle et al., memorandum and order on cross motions for summary judgement

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